Wednesday, August 11, 2010

Hey, Data Point!

A major part of my comment thesis is that courts don't protect the politically powerless, but rather only intervene once a marginalized group has demonstrated some clout in the political arena. And wouldn't you know it if, fresh on the heels of Judge Walker's historic opinion striking down California's anti-gay marriage constitutional amendment, we see a poll indicating that half of all Americans agree with him.

Of course, my suspicion is that these things aren't independent of each other. High profile gay marriage victories make it more likely that more people will label themselves in support of gay marriage, because the position has moved from fringe to mainstream (and people generally don't like to consider themselves fringe). At the same time, of course, growing popular support for gay marriage is what makes pro-gay marriage rulings feasible -- it's what moves them from "kooky, frivolous argument" to "position I have to take seriously".

I should say that I don't think whether gay marriage is constitutionally protected is dependent on whether a majority wills it so. I just think descriptively, judicial recognition of gay rights (or really any rights claim) seems to move in tandem with popular recognition of the same.


N. Friedman said...


You write: "A major part of my comment thesis is that courts don't protect the politically powerless, but rather only intervene once a marginalized group has demonstrated some clout in the political arena."

In Loving v. Virginia, the ban on interracial marriage was overturned. Advocates for interracial marriage had no important or large constituency or political clout. There were opponents to interracial marriage in both races and it was not something on the front or even middle burner. It was not a main plank among civil rights activists (as it was divisive even among that period's blacks) of the time. It was not high on the agenda of blacks or whites.

However, it was a position that was consistent with the court's role in overturning Jim Crow. But, intellectual consistency is not the same thing as having an important constituency. [Of course, it was also right to declare unconstitutional the law, a law which had helped define what what Jim Crow really symbolized.]

So, I think that, if your position is not merely used by you in the manner of stating a tautology, your position requires a bit of modification.

What you might more accurately write is that having a strong constituency for a marginalized group substantially increases the probability that a Court will side with that group.

For the record, at the time of the Loving decision, some 72% were opposed to interracial marriage. Yet, the Court acted. And, to note: it was the opponents which were most adamant about the law. There were, at the time, no long lines of people of different races looking to marry each other.

David Schraub said...

The Loving Court was rather explicit in viewing its decision as being one protecting the rights of Blacks, not "advocates of interracial marriage". The constitutional problem was the breach of racial equality, the case was a culmination of the civil rights era cases stemming from Brown, and by 1968 the political potency of Blacks had grown considerably.

Indeed, even restricting things to "advocates of interracial marriage", which I think is too narrow, the thesis still holds. Unpopular though interracial marriage may have been in 1968, it certainly was more so in 1883, when Pace v. Alabama was decided. The law, of course, didn't change in the interim. What changed was that interracial marriage specifically and racial equality generally became considerably more mainstream. True, not every issue commanded majority support -- but it wasn't as exceptionally fringe as it was in 1883.

N. Friedman said...


With due respect, what you now write demonstrates my point.

The Court was, as you write, "protecting the rights of Blacks," but not the rights of those interested in interracial marriage. So, the law in question was overturned for intellectual consistency, consistent with doing away with Jim Crow but contrary to the demands of any constituency with any clout - blacks not being a constituency looking to overturn the ban.

I am, however, glad that you push your viewpoint. If a group the size of the group hoping for interracial marriage could impact the court, that means (a) that your argument is an invalid, circular argument and (b) that it does not take much clout to get the Supreme Court on your side, if you know how to categorize your position. As you note, "it certainly was more so in 1883." That says it all - from no support to only nil support.

David Schraub said...

My Comment (in relevant part) descriptively attacks the Carolene Products thesis that courts play a particularly important role in protecting the politically marginal, and (by extension) should provide progressively less protection as marginalized groups gain the ability to participate equally in the legislative arena. This logic has been used by courts rejecting gay marriage cases, on the grounds that gays and lesbians are no longer "politically powerless" and thus do not deserve special judicial solicitude.

Were that true, we would expect challenges by the group in question to be more successful the less powerful they are. But that's empirically denied. Gay marriage challenges in 1972 went nowhere. By the 2000s, they began going somewhere -- but nearly exclusively in relatively progressive states. Not coincidentally, both gay marriage and the idea of gay equality generally were far more mainstream in 2005 than it was in 1972. Ditto in race cases -- judicial protection was a lagging indicator against increased political integration. If powerlessness was a boon in front of the Court (like Carolene Products suggests), Pace should have been a gimme decision the other way.

Now, I would argue, what matters is who the court conceptualizes itself as protecting in a given case, and in Loving it was Blacks.

But more importantly, your assumption regarding the status of interracial marriage at the time of Loving is simply wrong. By the time Loving was decided, only 16 states still barred interracial marriage -- the entire Confederacy, plus Kentucky, West Virginia, Missouri, and Delaware. 14 states had repealed their anti-miscegnation laws in the period immediately preceding Loving (1948-1967). The Supreme Court was hardly at the vanguard of a right that was unrecognized anywhere in the country. Like with all of its other civil rights rulings, it was merely forcing a recalcitrant regional minority to play catch-up in recognizing a right already established everywhere else in the country. It was at the tail of the train, not the head.

David Schraub said...
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David Schraub said...
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N. Friedman said...


You make a better argument this time. The Supreme Court was not all alone. States, as you say, had already acted in some parts of the country.

The issue here is why, not whether. You confuse the two, incorrectly assuming that the repeal of such laws was the result of constituencies pining for it. It was not.

Rather, eliminating anti-miscegenation involved tidying up in order to be consistent. That is why it was the former Confederate states, as you correctly note, that still had such laws in place. Which is to say, such laws were ideologically important to the Jim Crow ideology. Elsewhere, they were not important and, hence, fell due to their irrationality in view of the desegregation idea. In fact, the constituency of people interested in interracial marriage included very few.

Your contention revolves around having a constituency. My contention is that having a constituency is helpful but not the always decisive. I might add, it was the ACLU, not the NAACP, which took the lead in the case, instigating Richard and Mildred Loving to pursue their claim in court. So, I do not see how your point flies.

David Schraub said...

I do not "assume" nor argue that Loving came down the way it did as "the result of constituencies pining for it." I argue merely that having shown some political clout is a prerequisite for court action -- it is a threshold requirement before we even get to any other considerations of law, consistency, equity, whatever. That's the opposite of the Carolene Products story. You're confusing necessity with sufficiency.

Of course, courts can and do ignore groups that have "some political clout" all the time, for any number of reasons. Having political clout is not sufficient to win. But it is almost always necessary, and that's the opposite of the Carolene Products story.

To actually show an exception, you'd need to find a (at least somewhat high-profile) case where the court protected a group that was genuinely politically powerless -- akin to Blacks in 1883, or women in 1873 (compare Bradwell v. Illinois with Frontiero v. Richardson). Such cases do exist, but they are exceptionally rare, and almost always aberrations. I can think of no situation where the Supreme Court attempted to provide systematic protections to groups who were genuinely "politically powerless" at the time of the ruling.

N. Friedman said...


You keep going back and forth. The constituency in Loving was who? Was it blacks? Well, no, it was not. Was it whites? Well, no, it was not. The constituency, apart from the ACLU, consisted of those directly impacted - i.e. those of different races who wished to marry. Unless you have an explanation that deals with that core fact - which goes to the heart of your thesis -, you are getting nowhere.

What the ACLU did was graft their client's cause - a good cause - onto another good cause that, in fact, had a constituency. But, the argument that there was a constituency for interracial marriage is nonsense. It is contrary to fact. There was no such thing.

That there was a constituency which favored racial equality does not alter the fact that such people were not pushing for interracial marriage. My bet is that most civil right advocates were, whatever they might on rare occasion say publicly, very cold to the idea interracial marriage. Which is to say, there was great hostility towards whites by blacks who favored racial equality - with good reason, given the history, but surely inconsistent with the desegregation ideology.

David Schraub said...

Thesis: Courts "only intervene once a marginalized group has demonstrated some clout in the political arena."

Hypothesis: The court in Loving intervened only after the movement to legalize interracial marriage had demonstrated some political clout.

Data: Loving was decided after a burst of activity over the preceding 20 years saw 14 states repeal anti-interracial marriage laws, leaving only 16 with those laws on the books. That's a clear demonstration of "some clout in the political arena".

Hypothesis: Supported.

Issue: Not that complicated, and really not related to this "constituency" question, which in fact does not "go to the heart" of my thesis.

N. Friedman said...


But, there was no political clout involved. That is the problem here. These laws vaporized not due to political clout but for other reasons.

You are arguing, it seems to me, structurally. That, however, won't do here because your position requires a showing of clout, not a showing of a change in the laws. You need to investigate why the laws changed. Without that, you are not showing any clout, only change.

So, please help me here. What caused the laws to change? Was there a constituency with clout which pushed for the change? The answer is, NO. The change occurred for other reasons. These reasons are pertinent to whether your theory is correct.

Or, to put this in logic terms: you are looking for a first cause. The world came about, on that theory, because there was a prime mover - God. The modern logician, however, asked who created God and who created the creator of God. And, back and back by regression. Instead of a regressive argument, for your argument to be valid, you must show why the laws changed. You have not done that. You merely posit that if a law changes, it is due to clout. And, that is simply not always so.

So, why were the laws repealed?

N. Friedman said...


Excuse my inability to give up on this matter. My real point here is that I think you have created a circular argument, which is not subject to refutation. As I see it, you can find confirmation in your view in anything or nothing. That, more than your defense of your thesis in view of the Loving case, is what I find perplexing. And, that case confirms that you will hang on a really think limb - which ought to tell you that your argument is really not as good as you believe it to be.

On a different topic, I hope that you have read Jeffrey Goldberg's excellent article in the Atlantic. If not, you should.

David Schraub said...

All I'm arguing is that court action generally post-dates rather than pre-dates the politically viability of a given issue. However it was that Maryland or Nevada or Indiana decided to repeal their anti-miscegenation laws, the fact that they did so is prima facia proof that repealing anti-miscegenation laws was a politically viable decision to make.

The question of "constituencies" is a red herring -- all I need to demonstrate for my thesis to hold is that political viability predates legal viability (at least before the Supreme Court, at least most of the time). This is the reverse of Carolene Products, which says that courts should intervene when the political option is effectively foreclosed due to the marginalization of the group or issue.

An example that would falsify my hypothesis would have been if the Supreme Court had ruled the other way in Baker v. Nelson. That was a 1972 challenge against barring gays from marriage, and one that occurred way before gay marriage was on anybody's political radar screen. But of course, the Supreme Court dismissed Baker in a single sentence.

N. Friedman said...


Not to be too stubborn here, but you have subtlety altered your thesis.

Your original thesis was: "A major part of my comment thesis is that courts don't protect the politically powerless, but rather only intervene once a marginalized group has demonstrated some clout in the political arena." The group must demonstrate some clout, according to your original thesis. That is not something I added.

Now, you claim, "all I need to demonstrate for my thesis to hold is that political viability predates legal viability."

The problem with that thesis is that it is hopelessly vague, as in the term "political viability" is not only elastic but could mean anything at all.

Returning to our discussion about the Loving case, there was no group with clout involved. And, whatever viability there was in the cause was outside of the Confederacy, the place where the Court was asked to act. So, your contention assumes a United States post civil rights era.

One might better argue, with at least some degree of historical support, that there was no viability in the South on the issue and, while there were reasons why such laws disappeared in other parts of the country, the South presented very different issues and political forces. Moreover, by 1967, Jim Crow was in retreat. While there was no viable force pushing for the result in Loving, the forces against the couple were in retreat, but for unrelated reasons.

Akio said...

I find it bizarre in the extreme to suggest that there was no group with clout involved in the Loving case. The group of people interracially marrying was, at the time, quite small, but the relevant constituency included all those supporting interracial marriage, including civil rights advocates of all colors, regardless of whether or not they were ever interested in the possibility of marrying a person of another race.

For a minority, gaining political clout doesn't mean increasing the numbers of that minority, it means getting larger segments of society to sign on to their platform. The gay equality movement hasn't gained political relevance by turning more people gay, for instance; the change is that more people of all orientations accept the aims of the movement.